In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2866
JOHNNY WEBBER and DEBORA WEBBER,
Plaintiffs‐Appellants,
v.
ROGER BUTNER,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16‐CV‐1169 — Tanya Walton Pratt, Judge.
____________________
ARGUED JANUARY 16, 2019 — DECIDED MAY 3, 2019
____________________
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Johnny Webber was cut‐
ting down a tree on defendant Roger Butner’s property when
a branch fell and hit Webber on the head, causing severe inju‐
ries. Webber and his wife Debora sued Butner for negligence.
Webber was not wearing a hardhat when he was cutting the
tree. The only issue on appeal is whether the district court
erred by admitting evidence at trial that Webber was not
2 No. 18‐2866
using a hardhat and instructing the jury about considering
that evidence.
The district court ruled that the evidence that Webber was
not using a hardhat could not be admitted to support a de‐
fense of failure to mitigate damages. The court held, however,
that the evidence could be admitted to show Webber’s as‐
sumption of risk and comparative fault, and whether Webber
acted as a reasonably careful person. This ruling was reflected
in an instruction to the jury. The jury returned a verdict ap‐
portioning 51% of fault to plaintiff Webber and 49% to defend‐
ant Butner. Under Indiana’s modified comparative fault stat‐
ute, that meant Webber recovered nothing. See Ind. Code
§§ 34‐51‐2‐7(b)(2) & 34‐51‐2‐6; Hockema v. J.S., 832 N.E.2d 537,
542 (Ind. App. 2005) (“The Indiana statute is a type of modi‐
fied fifty percent comparative fault law. … Thus, if a claimant
is deemed to be more than fifty percent at fault, then the
claimant is barred from recovery.”).
This case is in federal court under diversity jurisdiction,
see 28 U.S.C. § 1332, so we apply Indiana substantive tort law,
which governs whether this evidence was relevant. In deter‐
mining fault, Indiana law bars admission of evidence that an
injured plaintiff was not using safety equipment unless the
failure to use the equipment contributed to causing the injury.
See Ind. Code §§ 34‐51‐2‐7(b)(1) & 34‐51‐2‐3; Green v. Ford Mo‐
tor Co., 942 N.E.2d 791, 795–96 (Ind. 2011). The fact that Web‐
ber was not wearing a hardhat did not cause the branch to fall
and hit him on the head. The district court nevertheless ad‐
mitted this evidence for the purpose of apportioning fault.
The admission of this evidence was an error, as was the in‐
struction about considering the evidence. We cannot say these
errors were harmless because the jury decided on a razor‐thin
No. 18‐2866 3
split when apportioning fault. The Webbers are entitled to a
new trial.
I. Factual & Procedural Background
On April 18, 2014, Johnny Webber was helping his friend
Roger Butner cut down trees on Butner’s property in south‐
eastern Indiana. Webber was not a professional logger, and he
was not wearing a hardhat while cutting down the trees. Ac‐
cording to plaintiffs’ evidence, the pair agreed that Webber
would operate the chainsaw while Butner would assist by
watching out for hazards. Unfortunately, while Webber and
Butner were cutting one of the trees, an apparently dead
branch fell on Webber’s head, causing severe and nearly fatal
injuries.
The Webbers filed this suit in state court. (Mrs. Webber’s
claim is derivative from her husband’s and requires no sepa‐
rate consideration here.) They alleged that Butner, as owner
of the property, had a duty to take reasonable steps to protect
Webber’s safety. They also alleged that Butner took on a spe‐
cific duty to Webber when he agreed to look out for hazards
and failed to warn Butner of the falling branch. Webber claims
that his injuries were a proximate result of Butner’s breaches
of duties.1
Butner removed the case to federal court, and the case was
tried to a jury. After jury selection but before opening argu‐
ments, the Webbers presented an oral motion in limine to
1 The Webbers later discovered and presented evidence at trial that a
professional logger had warned Butner that the trees were “very danger‐
ous” and should be cut down by a professional logger because they were
“dead in the butts” and “hollow in the butts.” Butner testified that he did
not recall the conversation but that it was possible it happened.
4 No. 18‐2866
exclude evidence that Webber was not using a hardhat while
he was cutting down the trees. Following argument, the dis‐
trict court ruled that the evidence could be introduced “to
show assumption of risk, comparative fault, and whether
Johnny Webber acted as a reasonably careful person.” Butner
then presented evidence that Webber had not been using a
hardhat. That evidence was highlighted in Butner’s closing
argument, reminding the jury that Webber cut the trees “with‐
out wearing any safety helmets, any safety equipment,” and
that “you can consider that testimony that he didn’t wear a
hardhat, so he basically—he assumed the risk of that danger.”
The court instructed the jury: “Evidence relating to the use of
a hardhat is offered to show assumption of risk, comparative
fault, and whether Johnny Webber acted as a reasonably care‐
ful person. You may not consider it to show whether it would
have prevented or altered the extent of Johnny Webber’s inju‐
ries.”2
2 While the district court identified three admissible bases here—as‐
sumption of risk, comparative fault, and failure to act as a reasonably care‐
ful person—we see no distinction for these purposes because each is a
means of apportioning fault to the plaintiff. See Indiana Model Civil Jury
Instruction 909 (2018) (“A person is negligent if he or she does something
a reasonably careful person would not do in the same situation, or fails to
do something a reasonably careful person would do in the same situa‐
tion.”); Heck v. Robey, 659 N.E.2d 498, 504 (Ind. 1995) (assumption of risk
“is subsumed by the concept of fault in [Indiana’s] comparative fault
scheme.”), abrogated on other grounds by Control Techniques, Inc. v. John‐
son, 762 N.E.2d 104, 107–10 (Ind. 2002); Indiana Model Civil Jury Instruc‐
tion 921 (2018) (To prove plaintiff assumed the risk, defendant must prove
by the greater weight of the evidence that plaintiff knew and appreciated
the risk and plaintiff voluntarily accepted the risk. If you decide that plain‐
tiff assumed the risk, then that conduct is fault that you should assess
against plaintiff.). For the reasons discussed below, no matter which way
No. 18‐2866 5
As noted, the jury apportioned 51% of fault to Webber and
49% of fault to Butner. The district court entered judgment for
Butner. On appeal, the Webbers challenge two related rulings:
(1) the admission of evidence that Webber was not using a
hardhat, and (2) the jury instruction on that evidence.
II. Analysis
We review a district court’s evidentiary rulings for an
abuse of discretion. E.g., Aldridge v. Forest River, Inc., 635 F.3d
870, 874 (7th Cir. 2011). A district court may abuse its discre‐
tion, however, if it exercises that discretion based on a mis‐
taken view of the law. E.g., Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 402 (1990); Turnell v. CentiMark Corp., 796 F.3d 656,
662 (7th Cir. 2015); Ervin v. OS Restaurant Services, Inc., 632
F.3d 971, 976 (7th Cir. 2011).
Since we are hearing this case under diversity jurisdiction,
substantive Indiana tort law governs the relevance, and thus
the admissibility, of this evidence of the failure to use safety
equipment. See, e.g., Barron v. Ford Motor Co., 965 F.2d 195,
198–200 (7th Cir. 1992) (discussing considerations to deter‐
mine whether state rule is procedural rule of evidence or sub‐
stantive rule to be used under the Erie Railroad doctrine in a
federal court hearing a case under diversity jurisdiction); id.
at 202 (Ripple, J., concurring). As shown below, Indiana cases
on evidence that an injured plaintiff failed to use safety equip‐
ment are driven by substantive policy determinations stem‐
ming from state legislation. We must apply Indiana law by
doing our best to predict how the Indiana Supreme Court
would decide about the relevance of this evidence. See, e.g.,
the “fault” is framed, these theories all require a causal connection to the
injury.
6 No. 18‐2866
Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 635 (7th Cir.
2002).
A. The Indiana Comparative Fault Act
To prove that Butner was at fault for the injury, the Web‐
bers had to show: (1) a duty owed to the plaintiff by the de‐
fendant; (2) a breach of duty by allowing conduct to fall below
the applicable standard of care; and (3) an injury proximately
caused by the defendant’s breach. See Robertson v. B.O., 977
N.E.2d 341, 344 (Ind. 2012); Nasser v. St. Vincent Hosp. & Health
Servs., 926 N.E.2d 43, 48 (Ind. App. 2010). If a plaintiff proves
each of these elements, the defendant is liable and all that re‐
mains is a determination of the amount of damages. See Rob‐
ertson, 977 N.E.2d at 344.
The Indiana Comparative Fault Act applies generally to
damages actions based in fault. See Mendenhall v. Skinner &
Broadbent Co., 728 N.E.2d 140, 142 (Ind. 2000). The Act re‐
placed the common law rule of contributory negligence, un‐
der which a plaintiff who was even slightly negligent was
barred from any recovery. See id., citing Indianapolis Power &
Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669 (Ind. 1991). The
Act allocates fault proportionally, “ensuring that each person
whose fault contributed to cause injury bears his or her pro‐
portionate share of the total fault contributing to the injury.”
Mendenhall, 728 N.E.2d at 142, citing Bowles v. Tatom, 546
N.E.2d 1188 (Ind. 1989).
For the section of the Act at issue here, “fault” is defined
to include:
any act or omission that is negligent, willful,
wanton, reckless, or intentional toward the per‐
son or property of others. The term also
No. 18‐2866 7
includes unreasonable assumption of risk not
constituting an enforceable express consent, in‐
curred risk, and unreasonable failure to avoid
an injury or to mitigate damages.
Ind. Code § 34‐6‐2‐45.
The phrase “unreasonable failure to avoid an injury or to
mitigate damages” applies only to a plaintiff’s conduct before
an accident or initial injury. Kocher v. Getz, 824 N.E.2d 671, 674
(Ind. 2005). In dicta in Kocher v. Getz, the Indiana Supreme
Court gave an example of such conduct: “failing to exercise
reasonable care in using appropriate safety devices, e.g.,
wearing safety goggles while operating machinery that pre‐
sents a substantial risk of eye damage.” Id. at 674–75. A plain‐
tiff’s post‐accident conduct that constitutes an unreasonable
failure to mitigate damages is not to be considered in the as‐
sessment of fault. Id. at 675.
Under the Act, the jury assesses percentage of fault by con‐
sidering “the fault of all persons who caused or contributed to
cause the alleged injury.” Ind. Code § 34‐51‐2‐7(b)(1) (empha‐
sis added). The Indiana Supreme Court has characterized this
language as “expansive.” Green v. Ford Motor Co., 942 N.E.2d
791, 795 (Ind. 2011) (“the legislature employed expansive lan‐
guage to describe the breadth of causative conduct that may
be considered in determining and allocating fault”). But in
Green the Indiana Supreme Court also emphasized that cau‐
sation remains central in assessing fault:
The Comparative Fault Act, however, further
specifies that, in comparative fault actions, the
“legal requirements of causal relation apply.”
Ind. Code § 34‐51‐2‐3. This requirement of
8 No. 18‐2866
proximate cause to establish liability was pre‐
served in the Indiana comparative fault
scheme. Control Techniques, Inc. v. Johnson, 762
N.E.2d 104, 109 (Ind. 2002).
The legislature has thus directed that a broad
range of potentially causative conduct initially
may be considered by the fact‐finder but that
the jury may allocate comparative fault only to
those actors whose fault was a proximate cause
of the claimed injury.
Id.
Essentially, the fact‐finder may consider “evidence of all
relevant conduct of the plaintiff reasonably alleged to have
contributed to cause the injuries. From that evidence, the jury
must then, following argument of counsel and proper instruc‐
tions from the court, determine whether such conduct satis‐
fies the requirement of proximate cause.” Green, 942 N.E.2d at
795. The jury “may allocate as comparative fault only such
fault that it finds to have been a proximate cause of the
claimed injuries.” Id. at 796. Further, the jury
shall apportion fault to the injured person only
if the fact‐finder concludes that the fault of the
injured person is a proximate cause of (not merely
“relates to”) the injuries for which damages are
sought (not merely the “underlying accident”).
Otherwise, any alleged fault of the injured per‐
son is not fault for the purposes of the … Com‐
parative Fault Act[] and shall not be appor‐
tioned.
Id.
No. 18‐2866 9
Causation thus is the key. The Comparative Fault Act re‐
quires a causal connection between evidence of fault and the
injury‐causing event. In Kocher v. Getz, immediately following
the mention of safety devices, the Indiana Supreme Court
wrote: “a plaintiff ‘may not recover for any item of damage
that [the plaintiff] could have avoided through the use of rea‐
sonable care.’” Kocher, 824 N.E.2d at 675 (alteration in origi‐
nal), citing Indiana Pattern Jury Instruction No. 11.120 (2003);
see Indiana Model Civil Jury Instruction 1137 (2018). As
Kocher explained, to be considered in apportioning fault, the
plaintiff’s failure to use the safety device must have a causal
nexus to his injury.3
B. Webber’s Lack of a Hardhat
Here, Butner has not argued that Webber’s failure to use a
hardhat caused the tree branch to fall on his head, resulting in
his injuries. During oral argument, Butner correctly acknowl‐
edged that there is no evidence that the absence of a hardhat
3 Kimbrough v. Anderson, which cited Kocher, illustrates the point. 55
N.E.3d 325 (Ind. App. 2016). There, the plaintiff sued his neighbor for
causing water damage to plaintiff’s house. Id. at 329–32. Due to mold dam‐
age, the value of plaintiff’s residence decreased by about 90%. But there
had already been severe mold caused by previous water damage inci‐
dents. Id. at 337 (“Expert hydrogeologist Dr. Letsinger also attributed the
cause of damage to the Residence to poorly installed drains around the
perimeter or foundation of the house, lack of a sump pump, poor grading,
or poorly maintained gutters. This evidence establishes that [plaintiff’s]
omission before the alleged watering incidents occurred could have caused
water intrusion in the lower level of the Residence.”). The Indiana Court
of Appeals ruled that the prior instances of water damage—which were
plaintiff’s fault—were an appropriate basis for apportioning fault because
there was a causal connection between the prior water damage and the
resulting mold. Id. at 337.
10 No. 18‐2866
caused this accident. The reason the branch fell and struck
Webber had nothing to do with whether he wore a hardhat.
Nor was there any expert testimony or other evidence that
Webber’s injuries would have been any different if he had
been wearing a hardhat.4
Since there was no causal relationship between Webber’s
lack of a hardhat before the injury and the injury‐causing
event or the injuries themselves, Indiana law did not provide
a basis for admitting this evidence. A couple of hypotheticals
illustrate the point.
First, suppose a person does not wear safety goggles while
cutting down a tree. That person is then hit on the head by a
falling branch, suffering injury. The absence of goggles has
nothing to do with the falling branch and the injury he suf‐
fered. This arguable “fault” did not contribute to the accident
or injury. Under Green, therefore, evidence and argument to
attribute fault for not using safety goggles would be irrele‐
vant.
Second, suppose another person does not wear safety gog‐
gles while cutting down a tree. A splinter of wood flies off the
chainsaw blade and hits him in the eye. In that case, the failure
4 The district court noted here: “The parties agreed that evidence re‐
lated to wearing a hard hat is not admissible to support a defense of failure
to mitigate damages. Defendant indicated that he does not intend to pre‐
sent expert testimony regarding whether wearing a hard hat would have
made any difference with regard to Johnny Webberʹs injuries. Instead, he
wishes to offer this evidence to show assumption of risk, comparative
fault, and whether Johnny Webber acted as a reasonably careful person.
The Court determines that this evidence is admissible for these purposes
only, not for mitigation of damages or determining any effect on the se‐
verity of the injuries.”
No. 18‐2866 11
to wear safety goggles would have been a proximate cause of
his injury. If he had been wearing safety goggles, the splinter
of wood would not have been able to injure his eye. The in‐
jury‐causing event and the injury would never have occurred.
In that case, evidence of the failure to use safety goggles
would be admissible to show fault.
Indiana’s focus on causation is important to prevent open‐
ing floodgates for admission of every arguably irresponsible
thing a plaintiff might have done. Suppose a person was cut‐
ting down a tree without wearing safety glasses, hearing pro‐
tection, steel‐toed boots, or gloves. These safety measures
would have had nothing to do with being crushed by a falling
tree branch. The lack of a causal relationship to the injury
should bar their admission under the Comparative Fault Act
as evidence of fault in such a case.
Webber has referred us to the so‐called “seatbelt cases”
that address whether to allow evidence that an injured plain‐
tiff was not wearing a seatbelt during a car crash. We do not
find these cases to be directly applicable here because they fo‐
cus largely on the post‐injury mitigation of damages rather
than causation. See State v. Ingram, 427 N.E.2d 444, 448 (Ind.
1981) (evidence that plaintiff had not worn seatbelt in car ac‐
cident could not be used to limit that plaintiff’s damages on
the basis that plaintiff had failed to mitigate his or her injuries:
“The act of buckling or not buckling a seat belt is an act the
injured party must perform before the injury causing the act
occurs,” and “the question of whether mitigation of damages
has occurred looks to the acts of the injured party only after
the injury has occurred.”). However, we agree with the more
limited point Webber makes: “Just as nonuse of seatbelts does
not cause crashes, nonuse of a hardhat in this case did not
12 No. 18‐2866
cause a dead branch to fall and strike Mr. Webber in the
head.” We have previously acknowledged as much. See Bar‐
ron v. Ford Motor Co., 965 F.2d 195, 199 (7th Cir. 1992) (“Wear‐
ing a seatbelt does not make it less likely that you will have
an accident.”).
A case that bears many similarities to this one is a hardhat
case from Virginia where a man cutting trees was also struck
by a falling limb. Musick v. United States, 768 F. Supp. 183
(W.D. Va. 1991). There, an Air Force plane flew at such a low
altitude that it caused a large limb to fall from a tree and se‐
verely injure the plaintiff. The court explained: “While [plain‐
tiff’s] injuries might have been less severe had he been wear‐
ing a hard hat at the time the limb fell on him, his wearing of
a hard hat would have done nothing to stop the ‘event’ (i.e.,
the plane’s low altitude flight) that caused the branch to fall.”
Id. at 188. The court held that the plaintiff was not at fault by
not wearing a hardhat at the time of the accident because
“nothing [plaintiff] did or failed to do caused or contributed to
the act that led to his injury[.]” Id.
So too here. The fact that Webber was not wearing a
hardhat did not cause the tree branch to fall and hit him. Ad‐
mitting this evidence and submitting an instruction to the jury
that allowed them to consider it in apportioning fault were
legal errors. The jury’s apportionment of fault between the
parties was so close that we cannot treat the errors as harm‐
less.
The district court’s judgment for the defendant is
VACATED, and the case is REMANDED for a new trial.